Sweat v. State

Citations

• 4 Tex. Ct. App. 617

Syllabus

<p>1. New Trial. — The defendant is entitled to be present in court when his motion for a new trial or in arrest of judgment is heard and determined; but when a disregard of this right is relied upon as error, the record must, in some authentic manner, affirmatively show the fact that he was absent when such action was taken in his case, and that the attention of the court was called to that fact. Note the distinctions taken between this case and Gibson v. The State, 3 Texas Ct. App. 438.</p> <p>2. Marks and Brands—Variance.—When the other circumstances of description correspond, if the witnesses differ as to how the characters alleged by the indictment as the brand are found on the animal, this will not he a material variance between the allegata and the probata, if they agree as to the locality and general conformation of the disputed characters.</p> <p>3. Same — Case Stated. —Indictment described a stolen animal by age, sex, ownership, and ear-marks, and also by certain characters, as the brands on the shoulder, loin, and hip. The configuration of one of the brands given by the witnesses differed somewhat from that delineated in the indictment, but they coincided with the indictment as'to the locality of the brand, and there was no conflict as to the other descriptive averments. Held, that, in this state of case, the discrepancy as to the brand was not a material variance, and the rule requiring descriptive allegations, though superfluous, to he proved as made has been substantially complied with.</p>